5.2.10 Non Agency Adoption (including Partner)

SCOPE OF THIS CHAPTER

This procedure applies to applications in relation to adoptive placements that have not been arranged by a local authority or registered adoption agency, other than children brought into the UK for the purposes of adoption. This will include adoption applications by step-parents, relatives, private foster carers or local authority foster carers who have not sought or obtained the local authority's approval for the placement becoming an adoptive placement and applicants seeking to adopt a child from overseas.

In relation to such applications, the residence requirement are as follows:

If the applicant or one of the applicants is the partner of the parent of the child, the child must have lived with the applicants continuously for 6 months prior to the application;

If the applicants are local authority foster carers, the child must have lived with the applicants continuously for 12 months prior to the application;

In any other case, the child must have lived with the applicant(s) for three out of the last five years prior to the application or the Court must have granted leave for an earlier application.

1. Initial Contact

Where residents of the local authority area request advice by letter, telephone or in person in relation to a non-agency adoption, the matter should be referred to the Adoption Service and a Referral Form should be completed and the enquirer should be offered general information. This may be by telephone or an office interview may be arranged.

The prospective applicants should be offered information and advice on the adoption process and the implications of adoption, including the following:

Legal consequences and alternatives to adoption and the requirement of the court to consider whether an alternative outcome would better serve the child’s welfare;

The child's need to know that s/he is adopted and have information about the birth family. They will need to be consulted and will need to attend court and that the court will need to be satisfied that the child has an age-appropriate understanding of the meaning of the proceedings;

The requirement for the consent of parents with Parental Responsibility to be obtained and otherwise the need to ask the court to dispense with consent;

The role of CAFCASS and that an Officer may be appointed by the Court;

The need to notify the local authority of their intention to apply for an Adoption Order;

Explain the court procedure, including the need for an Annexe A report;

Explore the applicants' motivation for adoption and their understanding of its possible impact on family relationships;

Provide the applicants with a copy of Torbay Council Adoption Information regarding Partner Adoption ( formerly referred to as “step parent adoption”).

If it is clear that the applicants do not fulfil the criteria of Domicile / Habitual Residence in the UK, the duty social worker should advise them to obtain legal advice.

In the case of a partner adoption, the case will be allocated to the Referral Team for completion of an Initial Assessment of the child’s welfare before an application for Adoption can be accepted.

When it is established that the family concerned wish to pursue adoption, the case should be allocated to a social worker in the Adoption Service. The allocated worker must fulfil the qualifications and experience criteria set out in Section 7 of the Adoption Panel Procedure

Where a foster carer is making a non-agency application to adopt a Looked After child, with the support of the local authority, the case will be allocated as soon as possible.

2. Notifications

Applicants for adoption, in the case of non-agency placements (voluntary or local authority), must notify the local authority for the area where they live of their intention to apply for an Adoption Order. The notification should be sent at least three months and not more than two years before the date of the adoption application (Section 44, ACA 2002). They may wish to instruct a solicitor to make the application on their behalf.

Any such notification received should be passed to the Adoption Service. The Adoption Manager will arrange for the notification to be acknowledged and, if not already allocated, allocate the case to a social worker. The allocated worker must fulfil the qualifications and experience criteria set out in Section 7 of the Adoption Panel Procedure.

As soon as practicable after notification is received, the allocated social worker will leave forms for the prospective adopters to complete for checks and references for all members of the household aged 18 or over.

Work should now begin with a view to preparation of the court report, because if this is delayed until the Annexe A report is actually requested by the court it is likely to be impractical to complete the report in time to avoid delaying the proceedings.

The procedure for the Partner adoption application is the same as for a UK non-agency adoption except that the application must be made within two years of giving notice to the local authority and the minimum period of time the child must have lived with the applicants before an adoption order is made is six months.

If a prospective adopter wishes their identity to be kept confidential in the court proceedings, they must request a serial number from the Court when lodging the application. If this is not done, the Court will disclose the name and address of the applicant to the birth parents.

Adoption and Children Act Section 44(5) requires the local authority to 'arrange for the investigation of the matter' on receipt of notice of intention from the applicant(s) (as opposed to leaving this until a later stage e.g. when the court has issued a notification that the application has been made).

The Adoption Agencies Regulations 2005 require that adoption case files are kept in a place of special security and protected from damage by fire or water. The minimum requirement in Torbay is that paper files are kept in a locked building.

3. Medical Information

Except where the application is by a step parent in which case a medical report is not required, the social worker will check that the applicants(s) and the child have received a medical examination before the adoption application is submitted.

If medical examinations are required, the social worker will provide the applicants with the relevant BAAF medical forms for completion. These should be submitted to the Court with the adoption application and the Court will send copies to the local authority when a Court report is requested. Upon receipt, the completed medical forms should be passed by the social worker to the Medical Adviser for comment. These comments should then be included in the Court report (see Section 6, Court Request for Report).

Reports on the health of the applicants and the child should be completed by a medical practitioner no more than 3 months before the application must be submitted to the court by the applicants with their application, unless one of the applicants is a parent of the child, or a sole applicant is the partner of a parent of the child.

The Annexe A Report format asks for a summary, written by the agency's Medical Adviser, of the child's and each applicant's health history and current state of health and any need for health care which is anticipated, and date of the most recent medical examination. The court rules indicate that this is not required in step-parent adoptions but it is required in all other cases.

4. Other Checks and References

On receipt of the notification of intention to apply to adopt, the social worker should arrange a Disclosure and Barring Service on the applicants and any member of the household aged 18 or over (Local Authority (Adoption) (Miscellaneous Provisions) Regulations 2005, Reg. 4).

Forms should be left for the prospective adopters to complete as soon as practicable after notification of an intention to adopt is received.

Consent should also be obtained for checks to be carried out with the local authority, Probation and the health trust - and the necessary checks should be made.

Arrange for the applicants to complete a Consent to Vetting Form giving consent for necessary checks and references.

Local authority records should be checked for all addresses where the applicants have lived in the past five years within Torbay and any other local authority. Checks should include Paris and records held by the adoption service.

Personal References

Nothing is said in the court rules for non-agency adoption applications about providing references. Advice from BAAF is that it would therefore be best to seek the court's directions in each case on whether there should be referees and if so how many. If the court directs that there should be references, then it is incumbent on the social worker preparing the Annexe A report to interview them.

5. Local Authority Duty to Supervise Child

On receipt of a notification in relation to a child who comes within the definition of Privately Fostered, the social worker must supervise the child until an Adoption Order is made in accordance with the Private Fostering Procedure, the requirements of the Children (Private Arrangements for Fostering) Regulations 2005 and the Disqualification from Caring for Children Regulations 2002 will apply except that, where the child is already known to the local authority, the requirements under the Private Fostering Regulations as to the initial visit to the placement will not apply.

The concept of a 'protected child' within the Adoption Act 1976 (Sections 32-36) no longer applies.

The aim of the supervision is:

To ensure the child is well cared for and in receipt of appropriate health and education services;

To support the prospective adopters and help them focus on the task of integrating the child into their family and of providing the child with full information about his or her background and birth family.

All visits should be recorded, including whether the child was seen and if so, whether the child was seen alone.

The social worker should advise the prospective adopters of the need for them to provide medical reports on themselves and the child to accompany their adoption application (see Section 3, Medical Information). The social worker should also attempt to obtain medical information on the birth parents and a neonatal report on the child if under 5 years old. The social worker should send all available medical information to the Medical Adviser for comment.

The social worker should ask the prospective adopters for the names of two personal referees, whom the social worker should interview.

The child will continue to have the status of a privately fostered child until an Adoption Order is made or until notification is given that the prospective applicants no longer intend to apply to adopt.

Prospective applicants should be asked to clarify their intentions if there is a delay and no adoption application is lodged. If this is not forthcoming, the social worker involved should write to the prospective applicants indicating that unless confirmation is provided of an intention to adopt, it will be assumed that the notification is withdrawn. In any event, after 2 years the notification will lapse.

Power to Remove the Child

Sections 36 to 40 of the ACA 2002 restrict the power to remove a child from the care of people who have applied to adopt the child or given notice of their intention to do so. This does not prevent the removal of a child with the authority of the court, or by the local authority in the exercise of its powers under any enactment other than Section 20 Children Act 1989. Appropriate action to safeguard a child would therefore not be impeded.

6. Court Request for Report

Where a Court receives an adoption application in relation to a non-agency adoptive placement, the Court will notify the local authority of the hearing date and request a Report be prepared and submitted to the Court, usually within 6 weeks of the receipt of the notification. The Court timescales should be clarified at an early stage and if more time is required, a written request must be submitted to the Court as soon as the need for an extension is identified.

The social worker responsible for the supervision of the child will be responsible for preparing the Report, and for this purpose should gather available information on the child and parents - see sections below.

Compiling the Annex A Report

7. Parental Consent

The adoptive applicants will have to indicate in their adoption application whether or not there is Parental Consent to the application. If the parents do not consent, it is for the applicants to ask the Court to dispense with the agreement of the parent or parents.

A parent who does not hold parental responsibility is not empowered to give or withhold formal consent to the adoption, but has a right to be heard and may wish to apply for a Section 8 order or to be given parental responsibility. Advise them to seek legal advice if necessary. Their wishes and feelings about the adoption and about contact should be included in the Annexe A report.

The parent who is the partner of the applicant in a step-parent case must also be asked to formally give consent (Adoption and Children Act Section 47).

It may delay the final hearing if sufficient efforts have not been made to trace absent parents, for example, via the Department of Social Security or other statutory bodies.

Any parent or other person with Parental Responsibility for the child must be interviewed in order to obtain their views, advise them of their rights and gather information about them for the Annex A report or for the benefit of the child in later life.

The social worker preparing the report should attempt to interview all relevant parties (as noted) in relation to the adoption application and ascertain their views. If they do not live within a reasonable travelling distance, the social worker may request that a social worker from the local authority for the area where they now live interview them.

The report should address the significance of the role played so far by the birth parents in the child's life and the implications of an Adoption Order for any future parental role.

The court will normally set a date for a directions hearing within 4 weeks of receiving the application. If it appears that the local authority's report cannot be completed by the time specified by the court, the Court must be informed as soon as possible and asked to agree a later date for the report's submission.

If, in the course of the assessment, the applicants decide not to proceed, they must inform the local authority of their decision and write to the court withdrawing their application.

In the case of a dispute or difference of view between the social worker and the applicants or the Guardian, the Solicitor should be consulted and consideration be given to whether the local authority should be represented in the proceedings.

Neither the applicant, nor anyone else has an absolute right to see the Annexe A report. The court has discretion to give a direction for disclosure (The Family Procedure (Adoption) Rules, Rule 77) It would be good practice for the writer of the report to share with individuals the part of the report relating to them.

8. Child's Wishes and Feelings

The social worker should speak to the child alone and with the prospective adopter/s to ascertain his or her wishes and feelings in relation to the adoption and report on these to the Court. Where the child is not aware of the adoption application, the social worker should discuss with the adopters the best way to address this so that the child's views can be obtained. Consider the need for direct work to be undertaken with the child to assist their understanding and prepare them for adoption.

The discussion with the child should address any confusion on the part of the child in relation to the implications of an Adoption Order for example where the adoptive applicant is a relative.

9. The Applicants

The report will need to comment on the strength and duration of any new family relationships, particularly in the case of an adoption application by a step parent. Where there is limited evidence of the strength and stability of the relationship, the applicants should be advised to consider deferring the application until there is more evidence of stability.

In addition, alternatives to adoption should be discussed and explored with the applicants, who should be encouraged to consider them (Please refer to Partner Adoption information sheet).

For example where the main concern is the child's name, the applicants should be advised to seek legal advice on how to achieve this without the need for an adoption order.

Applications by Local Authority Foster Carers

Local authority foster carers can apply for an Adoption Order without the local authority's consent when they have looked after the child throughout the year preceding the application (Section 42(4) ACA 2002). The decision whether to support foster carers who wish to adopt should be taken in a Review / Permanency Planning meeting. If the decision is to support the application, then adoption by these carers will become part of the Care Plan for the child (refer to procedure for planning adoption for a Child in Care). If the decision is not to support the application, then this procedure applies and legal advice should be taken throughout the process.

10. Adoption Support

Other than an application by a step parent, the social worker should consider the likely need of the child and adoptive family for adoption support. See Adoption Support Procedure.

11. Alternatives to Adoption

The report should address any alternatives to adoption, which may offer a better framework for the child and the birth parents' future role.

12. Adoption Hearing

The social worker responsible for preparing the report should attend the adoption hearing.

The social worker must attend the Court hearing and may be questioned about the contents of the report and the work done with the family. However, in the case of a partner adoption where all parties are in agreement the Social Worker is not required.

An order will not normally be granted unless the applicants and the child attend the Court in person.

13. After the Court Process

Once the adoption proceedings are complete, the social worker should complete the child's Adoption Case Record and arrange for its safe storage in the Adoption Archives.

If an Adoption Order is Granted

If the applicants wish to register their child with a General Practitioner (GP) in a new name, superseding the child's previous National Health Service (NHS) registration, they should do so using form FP58(B). (For further guidance refer to LAC(84)3.)

The child's case should be closed. Forward the closed case file to Social Services Directorate - Child Care Records storage, with a covering note giving the child's original and adopted names, dates of birth and adoption, details of the child's birth and adoptive parents, and the names of any siblings adopted at the same time.

If an Adoption Order is not Granted

Appendix 1: Annex A Report

Annex A

Report to the Court where there has been an Application for an Adoption Order or an Application for a Section 84 Order.

Section A: The Report and matters for the Proceedings

Part 1

The Report

For each of the principal author/s of the report:

Name;

Role in relation to this case;

Sections completed in this report;

Qualifications and experience;

Name and address of the adoption agency; and

Adoption agency case reference number.

Part 2

Matters for the Proceedings

Whether the adoption agency considers that any other person should be made a respondent or a party to the proceedings, including the child;

Whether any of the respondents is under the age of 18;

Whether a respondent is a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing and administering his or her property and affairs. If so, medical evidence should be provided with particular regard to the effect on that person's ability to make decisions in the proceedings.

Section B: The Child and the Birth Family

Part 1

Information about the Child

Name, sex, date and place of birth and address including local authority area;

Whether the child has been placed for adoption with the prospective adopter by a UK adoption agency;

Whether the child was being fostered by the prospective adopter;

Whether the child was brought into the UK for adoption, including date of entry and whether an adoption order was made in the child's country of origin;

Personality and social development, including emotional and behavioural development and any related needs;

Details of interests, likes and dislikes;

A summary, written by the agency's Medical Adviser, of the child's health history, his current state of health and any need for health care which is anticipated, and date of the most recent medical examination;

Any known learning difficulties or known general medical or mental health factors which are likely to have, or may have, genetic implications;

Names, addresses and types of nurseries or schools attended, with dates;

Educational attainments;

Any special needs in relation to the child (whether physical, learning, behavioural or any other) and his emotional and behavioural development;

Whether the child is subject to a statement under the Education Act 1996;

Previous orders concerning the child:

The name of the court;

The order made; and

The date of the order.

Inheritance rights and any claim to damages under the Fatal Accidents Act 1976 the child stands to retain or lose if adopted;

Any other relevant information which might assist the court.

Information about each Parent of the Child

Name, date and place of birth and address (date on which last address was confirmed current) including local authority area;

Photograph, if available, and physical description;

Nationality;

Racial origin and cultural and linguistic background;

Whether the mother and father were married to each other at the time of the child's birth or have subsequently married;

Where the parent has been previously married or entered into a civil partnership, dates of those marriages or civil partnerships;

Where the mother and father are not married, whether the father has Parental Responsibility and, if so, how it was acquired;

If the identity or whereabouts of the father are not known, the information about him that has been ascertained and from whom, and the steps that have been taken to establish paternity;

Past and present relationship with the other parent;

Other information about the parent, where available:

Health, including any known learning difficulties or known general medical or mental health factors which are likely to have, or may have, genetic implications;

Religious persuasion;

Educational history;

Employment history; and

Personality and interests.

Any other relevant information which might assist the court.

Part 2

Relationships, contact arrangements and views

The Child

If the child is in the care of a local authority or voluntary organisation, or has been, details (including dates) of any placements with foster parents, or other arrangements in respect of the care of the child, including particulars of the persons with whom the child has had his home and observations on the care provided;

The child's wishes and feelings (if appropriate, having regard to the child's age and understanding) about adoption, the application and its consequences, including any wishes in respect of religious and cultural upbringing;

The child's wishes and feelings in relation to contact (if appropriate, having regard to the child's age and understanding);

The child's wishes and feelings recorded in any other proceedings;

Date when the child's views were last ascertained.

The Child's Parents (or guardian) and relatives

The parents' wishes and feelings before the placement, about the placement and about adoption, the application and its consequences, including any wishes in respect of the child's religious and cultural upbringing;

Each parent's (or guardian's) wishes and feelings in relation to contact;

Date/s when the views of each parent or guardian were last ascertained;

Arrangements concerning any siblings, including half-siblings and step-siblings, and whether any are the subject of a parallel application or have been the subject of any orders. If so, for each case give:

The name of the court;

The order made, or (if proceedings are pending) the order applied for; and

The date of order, or date of next hearing if proceedings are pending.

Extent of contact with the child's mother and father and, in each case, the nature of the relationship enjoyed;

The relationship which the child has with relatives, and with any other person considered relevant, including:

The likelihood of any such relationship continuing and the value to the child of its doing so; and

The ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs.

The wishes and feelings of any of the child's relatives, or of any such person, regarding the child;

Whether the parents (or members of the child's family) have met or are likely to meet the prospective adopter and, if they have met, the effect on all involved of such meeting;

Dates when the views of members of the child's wider family and any other relevant person were last ascertained.

Part 3

A summary of the actions of the adoption agency

Brief account of the agency's actions in the case, with particulars and dates of all written information and notices given to the child and his parents and any person with parental responsibility;

If consent has been given for the child to be placed for adoption, and also consent for the child to be adopted, the names of those who gave consent and the date such consents were given. If such consents were subsequently withdrawn, the dates of these withdrawals;

If any statement has been made under section 20(4)(a) of the Adoption and Children Act 2002 (the '2002 Act') that a parent or guardian does not wish to be informed of any application for an adoption order, the names of those who have made such statements and the dates the statements were made. If such statements were subsequently withdrawn, the dates of these withdrawals;

Whether an order has been made under section 21 of the 2002 Act, section 18 of the Adoption (Scotland) Act 1978 or Article 17(1) or 18(1) of the Northern Ireland Order 1987;

Details of the support and advice given to the parents and any services offered or taken up;

If the father does not have Parental Responsibility, details of the steps taken to inform him of the application for an adoption order;

Brief details and dates of assessments of the child's needs, including expert opinions;

Reasons for considering that adoption would be in the child's best interests (with date of relevant decision and reasons for any delay in implementing the decision).

Section C: The Prospective Adopter of the Child

Part 1

Information about the Prospective Adopter, including suitability to adopt

Name, date and place of birth and address (date on which last address was confirmed current) including local authority area;

Photograph and physical description;

Whether the prospective adopter is domiciled or habitually resident in a part of the British Islands and, if habitually resident, for how long they have been habitually resident;

Racial origin and cultural and linguistic background;

Marital status or civil partnership status, date and place of most recent marriage (if any) or civil partnership (if any);

Details of any previous marriage, civil partnership, or relationship where the prospective adopter lived with another person as a partner in an enduring family relationship;

Relationship (if any) to the child;

Where adopters wish to adopt as a couple, the status of the relationship and an assessment of the stability and permanence of their relationship;

If a married person or a civil partner is applying alone, the reasons for this;

Description of how the prospective adopter relates to adults and children;

Previous experience of caring for children (including as a step-parent, foster parent, childminder or prospective adopter) and assessment of ability in this respect, together where appropriate with assessment of ability in bringing up the prospective adopter's own children;

A summary, written by the agency's medical adviser, of the prospective adopter's health history, current state of health and any need for health care which is anticipated, and date of most recent medical examination;

Assessment of ability and suitability to bring up the child throughout his childhood;

Details of income and comments on the living standards of the household with particulars of the home and living conditions (and particulars of any home where the prospective adopter proposes to live with the child, if different);

Details of other members of the household, including any children of the prospective adopter even if not resident in the household;

Details of the parents and any siblings of the prospective adopter, with their ages or ages at death;

Other information about the prospective adopter:

Religious persuasion;

Educational history;

Employment history; and

Personality and interests.

Confirmation that the applicants have not been convicted of, or cautioned for, a specified offence within the meaning of regulation 23(3) of the Adoption Agencies Regulations 2005 (S.I. 2005/389);

Confirmation that the prospective adopter is still approved;

Confirmation that any referees have been interviewed, with a report of their views and opinion of the weight to be placed thereon and whether they are still valid;

Details of any previous family court proceedings in which the prospective adopter has been involved (which have not been referred to elsewhere in this report.)

Part 2

Wishes, views and contact arrangements

Prospective Adopter

Whether the prospective adopter is willing to follow any wishes of the child or his parents or guardian in respect of the child's religious and cultural upbringing;

The views of other members of the prospective adopter's household and wider family in relation to the proposed adoption;

Reasons for the prospective adopter wishing to adopt the child and extent of understanding of the nature and effect of adoption. Whether the prospective adopter has discussed adoption with the child;

Any hope and expectations the prospective adopter has for the child's future;

The prospective adopter's wishes and feelings in relation to contact.

Part 3

Actions of the adoption agency

Brief account of the Agency's actions in the case, with particulars and dates of all written information and notices given to the prospective adopter;

The Agency's proposals for contact, including options for facilitating or achieving any indirect contact or direct contact;

The Agency's opinion on the likely effect on the prospective adopter and on the security of the placement of any proposed contact;

Where the prospective adopter has been approved by an agency as suitable to be an adoptive parent, the agency's reasons for considering that the prospective adopter is suitable to be an adoptive parent for this child (with dates of relevant decisions).

Section D: The Placement

Where the child was placed for adoption by an adoption agency (section 18 of the 2002 Act), the date and circumstances of the child's placement with prospective adopter;

Where the child is living with persons who have applied for the Adoption Order to be made (section 44 of the 2002 Act), the date when notice of intention to adopt was given;

Where the placement is being provided with adoption support, this should be summarised and should include the plan and timescales for continuing the support beyond the making of the adoption order;

Where the placement is not being provided with adoption support, the reasons why;

A summary of the information obtained from the Agency's visits and reviews of the placement, including whether the child has been seen separately to the prospective adopter and whether there has been sufficient opportunity to see the family group and the child's interaction in the home environment;

An assessment of the child's integration within the family of the prospective adopter and the likelihood of the child's full integration into the family and community;

Any other relevant information that might assist the court.

Section E: Recommendations

The relative merits of adoption and other orders with an assessment of whether the child's long term interests would be best met by an adoption order or by other orders (such as Child Arrangements Orders and Special Guardianship Orders);

Recommendations as to whether or not the order sought should be made (and, if not, alternative proposals);

Recommendations as to whether there should be future contact arrangements (or not).

The likelihood of the child's adaptation to living in the country he/she is to be placed;

Where the UK is the State of origin, reasons for considering that, after possibilities for placement of the child within the UK have been given due consideration, intercountry adoption is in the child's best interests;

Confirmation that the requirements of regulations made under sections 83(4), (5), (6) and (7) and 84(3) and (6) of the 2002 Act have been complied with;

For a Convention adoption or a Convention Adoption Order where the United Kingdom is either the State of origin or the receiving State, confirmation that the Central Authorities of both States have agreed that the adoption may proceed;

Where the State of origin is not the United Kingdom, the documents supplied by the Central Authority of the State of origin should be attached to the report, together with translation if necessary;

Where a Convention adoption order is proposed, details of the arrangements which were made for the transfer of the child to the UK and that they were in accordance with the Adoptions with a Foreign Element Regulations 2005 (S.I.2005/392).